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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSE K. DIOREC III, )
) Court of Appeals No. A-11018
Appellant, ) Trial Court No. 1KE-10-571 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2386 - February 22, 2013
Appeal from the Superior Court, First Judicial District,
Ketchikan, William B. Carey, Judge.
Appearances: David D. Reineke, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Stephen R. West, District Attorney, Ketchikan, and Michael C.
Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Bolger and Allard,
Judges.
BOLGER, Judge.
MANNHEIMER, Chief Judge, concurring.
Jose K. Diorec III was convicted of unlawful exploitation of a minor for
surreptitiously filming his stepdaughter in her bedroom. He challenges several conditions
on his probation, including requirements that he submit to periodic polygraph
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examinations, that he have no contact with the victim or her family, that he complete sex
offender treatment and other unspecified programs, that he advise other household
members of his criminal history, that he avoid involvement with organizations for
children, that he have no "sexually explicit material," and that he not access the Internet
without his probation officer's permission. We generally conclude that these conditions
are sufficiently related to Diorec's rehabilitation and the protection of the public. But we
conclude that the definition of "sexually explicit material" must be modified to provide
constitutionally adequate notice of what is prohibited.
Background
Diorec bought a spy camera online and installed it in a smoke detector in
the bedroom of his fourteen-year-old stepdaughter, J.F. He placed a video transmitter in
the ceiling above the camera, and hid a receiver in the entertainment center in the living
room. Diorec's wife and her two daughters discovered the camera when they plugged
the receiver into the TV after watching a video. They also discovered an unlabeled VHS
tape under the entertainment center that included a recording of J.F. in her room. When
Diorec's wife confronted him, Diorec smashed the tape cassette, and threw the film from
inside it into the woods.
The police executed a search warrant on the residence and seized VHS
tapes from different parts of the house. Seven of the tapes contained footage of J.F. in
underwear, naked, or masturbating.
During the police investigation, J.F. reported that Diorec had come into her
room unannounced while she was masturbating approximately a year before. Diorec told
J.F. that masturbation was normal, and the next day he gave her some lubricant. Shortly
after that, J.F. found a sex toy that Diorec had left on her bed.
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Diorec's wife told the police that Diorec had opened a Twitter account
about six months before, using the profile of a sixteen-year-old boy. At sentencing, she
told the court Diorec had used that account to contact J.F. and her friends.
The State charged Diorec with unlawful sexual exploitation of a minor,
possession of child pornography, and tampering with physical evidence. Prior to trial,
Diorec entered into a plea agreement and pleaded no contest to a single count of unlawful
sexual exploitation of a minor. Diorec also admitted two aggravating factors: that his
crime was committed against another household member,1 and that he had engaged in
other similar conduct against the same victim.2
Diorec objected to several conditions of probation that were requested in
the presentence report. The court modified some of these conditions and imposed others
as proposed. These conditions are the main subject of this appeal.
Discussion
A probation condition must be "reasonably related to the rehabilitation of
the offender and the protection of the public and must not be unduly restrictive of
liberty."3 Conditions that restrict constitutional rights are subject to special scrutiny to
determine whether the restriction serves the goals of rehabilitation of the offender and
protection of the public.4
1 AS 12.55.155(c)(18)(A).
2 AS 12.55.155(c)(18)(B).
3 Roman v. State , 570 P.2d 1235, 1240 (Alaska 1977).
4 Thomas v. State, 710 P.2d 1017, 1019 (Alaska App. 1985).
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The polygraph examination requirement
General Condition No. 12 requires Diorec to "submit to periodic polygraph
examinations as directed by a probation officer of the Department of Corrections."
Diorec argues that this requirement is not reasonably related to his rehabilitation or to the
protection of the public. He argues that polygraph results are inadmissable in evidence,
and that this requirement does not reasonably relate to any purpose of probation.
Alaska Statute 12.55.100(e)(1)(A) requires a defendant convicted of a sex
offense "as a condition of probation ... to submit to regular periodic polygraph
examinations." The legislature explained the purpose of this requirement in a letter of
intent that accompanied this legislation:
For most offenders the hope for deterrence in Senate Bill 218
is provided by the increased probation periods and the use of
the polygraph while on probation or parole. The polygraph
will help to provide an early warning system during
supervision that will put the probation or parole officer on
notice that corrective action is necessary due to signs of
deception or offending behavior. The use of the polygraph
should prevent at least some future victimization from
occurring.5
The legislature enacted this requirement based on committee testimony recommending
periodic polygraph examinations as part of a comprehensive "containment approach" to
the supervision of convicted sex offenders. 6
Based on this legislative history, we conclude that the polygraph testing
specified in the statute was intended to promote the rehabilitation of sex offenders and
5 2006 Senate Journal 2211-12 (Feb.16, 2006).
6 See the Minutes of the joint meeting of the Senate State Affairs Committee and the
Senate Judiciary Committee held on March 16, 2005.
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to protect the public from further sexual offenses. We thus assume that when Diorec
submits to polygraph examinations pursuant to his probation condition, the examinations
will be limited to those purposes.
Diorec also argues that the results of his polygraph examinations will not
be admissible against him in probation revocation proceedings or other court
proceedings. Under current Alaska law, the results of polygraph examinations are
normally not admissible in court proceedings, even when the parties are willing to
stipulate to the admission of the results.7
We note that courts from other states are currently split on the issue of
whether a probationer's polygraph results are admissible in a probation revocation
8
proceeding. But Diorec has not yet been required to take a polygraph examination, and
the State has never asked that the polygraph results be admitted into evidence.
Consequently, this issue is not squarely in front of us in the present case, and we express
no opinion on the proper resolution of this issue.
7 Pulakis v. State , 476 P.2d 474, 479 (Alaska 1970); Haakanson v. State , 760 P.2d
1030, 1034-35 (Alaska App. 1988).
8 Compare Hoeppner v. State , 918 N.E.2d 695, 700 (Ind. App. 2009), and State v.
Lumley , 977 P.2d 914, 919-21 (Kan. 1999) (both holding that the results of a polygraph
examination are admissible in a probation revocation proceeding because a probation
revocation hearing is not an adversarial criminal proceeding, but rather a civil matter with
more flexible procedures), and State v. Hammond , 180 P.3d 137, 141-42 (Or. App. 2008)
(holding that polygraph results are admissible in probation revocation proceedings because
those proceedings are not governed by the rules of evidence), with Leonard v. State , 315
S.W.3d 578, 580-81 (Tex. App. 2010), and Turner v. Commonwealth, 685 S.E.2d 665, 667-
68 (Va. 2009), and Lane v. State , 762 So.2d 560, 561 (Fla. App. 2000) (all holding that
polygraph results are not admissible in any judicial proceeding, including a probation
revocation hearing, because this evidence is not reliable).
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Diorec also contends that the requirement of polygraph examinations
violates his privilege against self-incrimination - because he has been ordered to submit
to these examinations, and because it is foreseeable that, during the examinations, he will
be asked to provide information that might tend to incriminate him, either with respect
to new offenses or with respect to other violations of his probation.9 But the State
concedes that it would be improper to interpret Diorec's condition of probation as
requiring him to incriminate himself.
The State asserts that when probationers in Diorec's situation are
summoned to submit to polygraph examinations, the Department of Corrections
expressly advises the probationers that (1) they may assert their privilege against self-
incrimination and refuse to answer any question if the requested information would tend
to incriminate them, and (2) their probation will not be revoked for valid assertions of
the privilege against self-incrimination.
Given the State's representations to this Court, it appears that Diorec's
court-ordered polygraph examinations do not present a realistic hazard of self-
incrimination.10 If, in the future, a dispute arises as to whether Diorec has validly invoked
his privilege against self-incrimination during a polygraph examination, the superior
court can resolve the dispute at that time.
The restriction on contact with the victim or her family
Special Condition No. 1 states that Diorec "shall have no contact, direct or
indirect, with the victim J.F. and her immediate family, except as may be allowed by the
9 See James v. State , 75 P.3d 1065, 1072 (Alaska App. 2003).
10 See Gyles v. State, 901 P.2d 1143, 1148-49 (Alaska App. 1995).
6 2386
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court in [Diorec's divorce proceeding]." Diorec argues that this restriction
unconstitutionally restricts his access to his other daughter, N.T., who was seven years
old at the time of sentencing.
At sentencing, Diorec's ex-wife told the court that the divorce court had
ordered that N.T.'s counselor had to approve any contact between Diorec and N.T.
Diorec was allowed to write letters to N.T., and the counselor was holding them until
N.T. was ready for them. And N.T. was writing in a journal that would be given to
Diorec at some point in the future.
Conditions of probation restricting family associations must be subjected
to special scrutiny because they implicate important constitutional rights.11 In this case,
however, Diorec had exploited a child from his nuclear family. Therefore it was
reasonable for the sentencing court to act to protect the other members of his family,
including his biological daughter, N.T.12
Moreover, this restriction is narrowly tailored to avoid unnecessary
interference with Diorec's family relationships. Apparently, the divorce court had
already issued a court order concerning N.T.'s custody and Diorec's contact with her.
By deferring to the divorce court, Judge Carey avoided issuing a potentially conflicting
order. In essense, Judge Carey simply ordered Diorec not to violate the orders of the
11 Hinson v. State , 199 P.3d 1166, 1174 (Alaska App. 2008).
12 See Nitz v. State, 745 P.2d 1379, 1381-82 (Alaska App. 1987) (upholding condition
of probation restricting defendant who abused his daughter and other children from contact
with his daughter); Sylvester v. State , Mem. Op. & J. No. 4460, 2001 WL 1173967, at *2
(Alaska App. Oct. 3, 2001) (upholding condition restricting defendant's contact with three
daughters unless defendant was in presence of another adult who knew the circumstances of
his crime).
7 2386
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divorce court. This condition adopts the least restriction on Diorec's family relationships
by encompassing only a restriction that he was independently required to follow.
The requirement that Diorec must complete "other
Department-approved programs"
Special Condition No. 6 requires Diorec to complete other programs at the
direction of his probation officer:
The defendant shall, if decided to be appropriate by his
probation officer and sex offender treatment provider, enter
and successfully complete any other Department-approved
programs, including but not limited to mental health
counseling, cognitive behavioral therapy and domestic
violence programming.
Diorec argues that the broad designation of "any other Department-approved programs"
makes this condition overbroad because it delegates too much discretion to Diorec's
probation officer.
However, we conclude that there are two restrictions on the probation
officer's discretion that are relevant to our construction of this condition. First, the
probation officer's authority for this type of condition is specifically defined and limited
by statute. Alaska Statute 12.55.100(a)(5) authorizes conditions of probation that require
the defendant,
to participate in or comply with the treatment plan of an
inpatient or outpatient rehabilitation program specified by
either the court or the defendant's probation officer that is
related to the defendant's offense or to the defendant's
rehabilitation.
8 2386
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Based on this statute, we assume that Diorec's probation officer may not require Diorec
to participate in a treatment program unless the program is related to his offense or to his
rehabilitation.
Second, the probation officer's authority is limited by the language of the
condition itself. The condition lists examples of the types of Department-approved
programs that Diorec may be required to participate in: mental health counseling,
cognitive behavioral therapy, and domestic violence programming. This list suggests that
the programs Diorec will be required to participate in will be similar to these examples.13
Moreover, the presentence investigation suggested that additional programs
may be important for Diorec's rehabilitation. In particular, the presentence report details
prior incidents where Diorec engaged in misbehavior involving stalking and domestic
violence against a former girlfriend. Diorec had also been terminated from a position at
Ketchikan Youth Facility for making sexual advances towards teenage female inmates.
And Diorec's misconduct with J.F. could be interpreted to involve a long period of
grooming for possible sexual abuse. We conclude that, when properly construed, this
probation condition has a sufficient relationship to Diorec's crime and to his
rehabilitation.
The requirement that Diorec must advise other household
members of his criminal history
Special Condition No. 9 requires Diorec to "advise all members of the
household in which he is residing of his criminal history, even when his residence is
temporary." This condition also allows Diorec's probation officer to discuss the
circumstances of Diorec's criminal history with other members of his household.
13 See Kenai v. Friends of Recreation Center, Inc ., 129 P.3d 452, 459 (Alaska 2006).
9 2386
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Diorec argues that this condition violates his constitutional rights to travel
and association. He argues that less restrictive options should have been considered, such
as prohibiting him from residing in a household with minor females.
We conclude that part of Diorec's argument is based on a misreading of this
condition. This condition does not limit Diorec's choice of residence or require him to
reveal his criminal history to his landlord. This condition only applies to Diorec if he
chooses to reside with other people. In that case, Diorec will be required to advise the
other members of his household of his criminal history.
This limited requirement is directly related to the protection of the public.
Diorec's crime was committed against another household member. It is reasonable that
future household members should be warned about his crime. This will enable household
members to take appropriate precautions such as limiting visits from teenage girls. We
conclude that this condition was well within the sentencing judge's discretion.
The restriction on involvement with organizations for
children
Special Condition No. 11 requires Diorec to avoid involvement with certain
organizations for children:
The defendant shall not be involved in any organizations
which would place the defendant in direct contact with
persons under sixteen years of age, i.e., Boy Scouts, Girl
Scouts, 4-H, Big Brother or Big Sister program, Sunday
School teaching, etc.
Diorec argues that this condition is vague and that it unnecessarily prohibits his
involvement with organizations for male children (even though his victim was female).
10 2386
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(There is a separate condition that restricts Diorec's contact with girls under the age of
sixteen).
We construe this condition using the same approach we applied to the
condition involving other treatment programs. The organizations that are listed as
examples are all organizations whose primary aim is to provide activities for children.
The restriction thus applies only to similar organizations: It prevents Diorec from
coaching a middle school track team, but it does not prevent him from working in a
supermarket. So construed, this condition does not improperly infringe any of Diorec's
activities.
Diorec's main argument is that this condition impermissibly restrains his
contact with boys, even though his offense was committed against a girl. But his
argument does not provide any solid basis to limit the scope of this condition. The statute
that authorizes this condition does not distinguish the gender of the victim - the statute
simply allows the sentencing court to require a defendant convicted of a sexual offense
against a minor to refrain from "communicating with children under 16 years of age."14
And we have previously decided cases where sex offenders have committed offenses
against both boys and girls.15 Diorec has not pointed to any assessment in the record
establishing that this condition is not necessary to protect minors of both genders.
14 AS 12.55.100(e)(2).
15 Ferrick v. State , 217 P.3d 418, 420 (Alaska App. 2009) (reviewing a case where the
defendant was convicted of possession of child pornography involving pictures of both boys
and girls); Williams v. State, 928 P.2d 600, 605 (Alaska App. 1996) (reviewing convictions
for sexual abuse of nine- and ten-year-old girls and defendant admitted previously molesting
a three-year-old boy); James v. State , 754 P.2d 1336, 1338 (Alaska App. 1988) (reviewing
convictions involving the attempted sexual assaults of a ten-year-old boy and a nine-year-old
girl).
11 2386
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Moreover, the record suggests another reason that Diorec should be
restricted from organizations for boys. Diorec opened a Twitter account and pretended
to be a teenage boy to establish a virtual relationship with J.F. and her friends. This
suggests that even if Diorec is primarily interested in teenage girls, he could use his
relationship with teenage boys to gain access to teenage girls. We conclude that there is
a sufficient relationship between this condition and the goal of protection of the public.
The restriction on sexually explicit material
Special Condition No. 13 prohibits Diorec from possessing any "sexually
explicit material," which is defined to include "child erotica, sexually graphic anime,
adult and/or child pornography, chat logs included." Special Condition No. 14 forbids
Diorec from entering any establishment "whose primary business is the sale of sexually
explicit material" and "any establishment where nude dancing or posing is part of the
entertainment." Special Condition No. 15 requires him to submit to warrantless searches
of his residence, any vehicle under his control, and any device under his control with
Internet connectivity for the presence of "sexually explicit material."
At sentencing, Diorec objected to these conditions because they restricted
his access to adult pornography and popular media containing sexually explicit material.
Diorec argued the restrictions should be limited to prohibit sexually explicit material
involving young girls. In response, the State argued that sex offenders use a variety of
materials for stimulation, which can then lead to criminal misconduct.
Judge Carey concluded that these restrictions on possession of sexually
explicit material were directly related to Diorec's crime and to his rehabilitation:
I find the fact that Mr. Diorec was essentially involved in the
production of pornography, or attempted pornography, and
the fact that he had pornography on his computer was
12 2386
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referenced by [the prosecutor]. I find that ... convinces me
that the overall prohibition of pornography contained in
number 13 and 14 . . . is appropriate under the circumstances.
... [A]nd I don't find that the possession of pornography is
going to assist his rehabilitation in any way.
We agree with Judge Carey's conclusion that a restriction on sexually explicit material
is generally related to Diorec's offense and to the sentencing goals of rehabilitation and
protection of the public.
On appeal, Diorec repeats his argument that these conditions are overbroad
because they prohibit him from possessing adult pornography, even though the victim
of his crime was a child. But once again, we are hampered by the absence of any expert
testimony or scientific studies on this topic. Diorec cites no cases suggesting that a
condition banning adult pornography is unnecessary for an offender convicted of a crime
against a child. And several courts have rejected this argument.16 We conclude that
Diorec has not established that Judge Carey committed an abuse of discretion when he
concluded that the restriction on adult material is necessary to protect the public and to
promote Diorec's rehabilitation.
Diorec also argues that the term "sexually explicit material" is
unconstitutionally vague. As noted above, probation conditions may restrict
constitutional rights, but such restrictions are subject to special scrutiny to determine
16 See United States v. Brigham , 569 F.3d 220, 234 (5th Cir. 2009) (approving condition
forbidding offender convicted of a sex crime involving children from possession of adult
pornography); United States v. Boston, 494 F.3d 660, 667-68 (8th Cir. 2007) (same); United
States v. Beeman , 280 Fed. Appx. 616, 619 (9th Cir. 2008) (same holding, based on
testimony that adult pornography can be a gateway to child pornography); Wilfong v.
Commonwealth, 175 S.W.3d 84, 99 (Ky. App. 2004) (stating that "it is a legitimate concern
that exposure to sexually-arousing or sexually-orientated materials may contribute to sexual
deviancy or the possibility of future sexually-abusive behavior").
13 2386
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whether they are necessary to promote the goals of rehabilitation and protection of the
public.17
Diorec relies on a case where the Indiana Court of Appeals held that a
probation condition prohibiting possession of "any pornographic or sexually explicit
materials" was unconstitutionally vague.18 The State also cites cases where the
Washington Supreme Court and the Ninth Circuit Court of Appeals have held that
probation conditions prohibiting possession of pornography were invalid because the
word "pornography" is unconstitutionally vague.19 But the State notes that the same
courts have upheld the use of the terms "sexually oriented material" and "sexually
explicit material," particularly when those terms are tied to a specific statutory
definition.20
In the present case, Judge Carey defined the term "sexually explicit
material" to include "pornography," a term that has been held to be unconstitutionally
vague in cases cited by both Diorec and the State. This portion of Diorec's condition
must be revised. On remand, the superior court shall revise this condition so that it
provides constitutionally adequate notice of the materials that Diorec is restricted from
possessing.
17 Thomas, 710 P.2d at 1019.
18 Smith v. State, 779 N.E.2d 111, 117-18 (Ind. App. 2002).
19 See United States v. Guagliardo , 278 F.3d 868, 872 (9th Cir. 2002); State v. Bahl, 193
P.3d 678, 687-88 (Wash. 2008); see also United States v. Loy , 237 F.3d 251, 254 (3d Cir.
2001) (holding that the term "pornography" is unconstitutionally vague).
20 See Bahl, 193 P.3d at 688-89; see also United States v. Simmons, 343 F.3d 72, 81-82
(2d Cir. 2003) (holding that the defendant had notice of the prohibited conduct, despite the
vague nature of this term, when he was convicted under a statute that contained a definition
of pornography).
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We note that the statute that Diorec violated suggests a more specific
definition that could be used in this type of probation condition. Alaska Statute
21
11.41.455(a) contains a specific list of sexual conduct, which is incorporated in several
other statutes defining sexual offenses.22 The statute penalizing the distribution of
indecent material to minors contains a similar list.23 The superior court may wish to refer
to one of these statutory definitions when it revises Diorec's conditions of probation.
The restriction on Internet access
Special Condition No. 16 forbids Diorec from opening an Internet account
or accessing the Internet from another person's account without the prior written
permission of his probation officer. Diorec argues that this condition is overbroad
21 AS 11.41.455(a) provides:
A person commits the crime of unlawful exploitation of a minor if, in the state and
with the intent of producing a live performance, film, audio, video, electronic, or
electromagnetic recording, photograph, negative, slide, book, newspaper, magazine,
or other material that visually or aurally depicts the conduct listed in (1)-(7) of this
subsection, the person knowingly induces or employs a child under 18 years of age
to engage in, or photographs, films, records, or televises a child under 18 years of age
engaged in, the following actual or simulated conduct:
(1) sexual penetration;
(2) the lewd touching of another person's genitals, anus, or breast;
(3) the lewd touching by another person of the child's genitals, anus, or breast;
(4) masturbation;
(5) bestiality;
(6) the lewd exhibition of the child's genitals; or
(7) sexual masochism or sadism.
22 See AS 11.41.436(a)(4); AS 11.41.452(a); AS 11.61.127(a).
23 See AS 11.61.128(a)(1)(A)-(F).
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because he claims the Internet is not related to his present crime, his rehabilitation, or the
protection of the public.
Alaska Statute 12.55.100(e)(2)(A) allows a probation condition preventing
offenders convicted of certain sexual offenses against children from "using or creating
an Internet site." Alaska Statute 12.55.100(e)(2)(C) allows a condition preventing those
offenders from "possessing or using a computer."
In Dunder v. State , however, we recognized that such a condition may be
unnecessarily restrictive:
Under Roman v. State , parole and probation conditions "must
be reasonably related to the rehabilitation of the offender and
the protection of the public and must not be unduly restrictive
of liberty." Dunder points out that it is difficult to function in
modern society without access to the technology that Judge
Smith's order prohibits him from possessing. He further
suggests that, by the time he is released from his lengthy term
of imprisonment, it will likely be even more difficult to
function in society "without the use of at least one electronic
device." Given the rapid advance of technology and the
length of Dunder's sentence of imprisonment, we agree that
some degree of access to these devices will probably be
necessary to Dunder's reintegration into society.24
We concluded that a condition prohibiting Internet access could be reasonable only if the
condition allows a probation officer to allow necessary Internet use under appropriate
conditions. Many courts have approved similar conditions when the Internet ban can be
relaxed or modified by a probation officer.25
24 Dunder v. State , Mem. Op. & J. No. 5487, 2009 WL 1607917, at *1 (Alaska App.
June 10, 2009) (footnotes omitted).
25 See United States v. Crandon , 173 F.3d 122, 128 (3d Cir. 1999); United States v.
Knight , 86 Fed. Appx. 2, 4 (5th Cir. 2003); United States v. Muhlenbruch, 682 F.3d 1096,
16 2386
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In this case, Judge Carey found that this condition was reasonable as long
as Diorec's probation officer exercises appropriate discretion. The record supports Judge
Carey's decision. Seven months before this offense, Diorec created the online profile of
a sixteen-year-old boy and contacted J.F. and her friends with that profile. He also had
possession of both adult and child pornography on his computer. It was reasonable for
the court to conclude that supervision of Diorec's access to the Internet could promote
his rehabilitation and protect the public, and that Diorec's probation officer will allow
any reasonable Internet use that is important for his rehabilitation.
Conclusion
Diorec also argues that his sentence is excessive. He concedes that this
court does not have jurisdiction to review his sentence, and he requests that this issue
should be referred to the Alaska Supreme Court under Alaska Appellate Rule 215(k). We
accordingly REFER this issue to the Alaska Supreme Court for discretionary review.
Following review by the Alaska Supreme Court, this case shall be
REMANDED to the superior court for modification of Special Condition No. 13 as set
forth above. In all other respects, the superior court's judgment is AFFIRMED.
1104-05 (8th Cir. 2012); United States v. Antelope, 395 F.3d 1128, 1142 (9th Cir. 2005);
United States v. Walser, 275 F.3d 981, 987-88 (10th Cir. 2001); United States v. Zinn, 321
F.3d 1084, 1092-93 (11th Cir. 2003); United States v. Love, 593 F.3d 1, 11-12 (D.C. Cir.
2010).
17 2386
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Judge MANNHEIMER, concurring.
I write separately to explain in more detail why I agree with my colleagues
that the phrase "sexually explicit material" (which is found in Conditions 13, 14, and 15
of Diorec's special conditions of probation) is constitutionally flawed.
Special Condition 13 prohibits Diorec from possessing "any sexually
explicit material" - a phrase which, according to Condition 13,
includes but is not limited to child erotica, sexually graphic
anime [and] adult ... pornography[.]
Condition 13 further states that this prohibition applies to (1) books, magazines, and any
other printed matter, as well as (2) movies and videos, and (3) any electronic device that
can hold sexually explicit material in visual or aural form - for example, an e-reader.
Special Condition 14 prohibits Diorec from entering "any establishment
whose primary business is the sale of sexually explicit material". And Special
Condition 15 requires Diorec to "submit to a warrantless, nonconsensual search of his
residence or any vehicle under his control, [as well as any] personal computer and/or any
item which has Internet connectivity (i.e., X-Box, cell phone, [P]alm [P]ilots,
Blackberries, etc.) by a Probation Officer for the presence of sexually explicit
material." 26
Diorec does not challenge the superior court's authority to prohibit him
from possessing child erotica, but he does challenge the prohibition on adult
pornography and other undefined types of "sexually explicit material".
26 The names "X-Box", "Palm Pilot", and "Blackberry" are all registered trademarks.
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Diorec notes that Condition 13 declares that the phrase "sexually explicit
material" includes adult pornography, but is not limited to adult pornography. It is
therefore reasonable to infer that the superior court intended the phrase "sexually explicit
material" to encompass other, undefined types of printed and video material which,
although not pornographic, are nevertheless "sexually explicit".
This provision raises two problems under the First Amendment.
The first problem is vagueness. If "sexually explicit material" includes not
only pornography but also other "sexually explicit" things, there is a substantial danger
that neither Diorec nor his probation officer will have a definite idea of what Probation
Condition 13 covers.
The State concedes that several courts from around the country have
concluded that, in this context, the term "pornography" is unconstitutionally vague.
However, somewhat paradoxically, the State asserts that the phrase "sexually explicit
material" is not unconstitutionally vague.
The State's assertion is paradoxical because, as I have just explained,
Condition 13 declares that "pornography" is a smaller subset of the broader category of
"sexually explicit material". If the term "pornography" is unconstitutionally vague, then
it is difficult to see how the phrase "sexually explicit material" could be free of the same
improper vagueness.
The paradox is resolved when one examines the two court decisions that
the State relies on: United States v. Rearden, 349 F.3d 608 (9th Cir. 2003), and State v.
Bahl , 193 P.3d 678 (Wash. 2008). In both cases, the courts upheld the phrase "sexually
explicit" because that phrase did not stand alone; rather, it was explicitly linked to a more
specific and detailed statutory definition.
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In Rearden , the sentencing court prohibited the defendant from possessing
any materials that depicted "sexually explicit conduct as defined in 18 U.S.C. § 2256(2)".
349 F.3d at 620. The federal statute in question, 18 U.S.C. § 2256(2), defines "sexually
explicit conduct" as "(i) graphic sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite
sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area
of any person is exhibited; (ii) graphic or lascivious simulated; (I) bestiality; (II)
masturbation; or (III) sadistic or masochistic abuse; or (iii) graphic or simulated
lascivious exhibition of the genitals or pubic area of any person".
In Bahl , the Washington Supreme Court engaged in a lengthy discussion
whether the terms "pornography" and "sexually explicit" were sufficiently definite to
survive a vagueness challenge. 193 P.3d at 686-89. The Washington court held that a
probation condition prohibiting the defendant from possessing "pornography" was
unconstitutionally vague. Id. at 686-88. The court upheld a probation condition that
referred to "sexually explicit material", but not in the context of prohibiting the defendant
from possessing printed or video material. Rather, the probation condition in question
barred the defendant from "[frequenting] establishments whose primary business pertains
to sexually explicit or erotic material." Id. at 688-89. Moreover, the Washington court
noted that Washington had a statutory definition of "sexually explicit material": RCW
9.68.130(1) defines "sexually explicit material" as:
any pictorial material displaying direct physical stimulation
of unclothed genitals, masturbation, sodomy (i.e., bestiality
or oral or anal intercourse), flagellation or torture in the
context of a sexual relationship, or emphasizing the depiction
of adult human genitals: PROVIDED HOWEVER, That works
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of art or of anthropological significance shall not be deemed
to be within the foregoing definition.
Quoted in Bahl , 193 P.3d at 689.
In Diorec's case, the phrase "sexually explicit material" is not linked to any
such limiting or clarifying statutory definition. In fact, according to the wording of
Special Condition 13, the phrase "sexually explicit material" is broader than the term
"pornography", because this phrase "includes but is not limited to ... pornography". It
therefore appears that the phrase "sexually explicit material", as employed in Diorec's
conditions of probation, suffers from improper vagueness.
The second problem is overbreadth. If "sexually explicit material" includes
not only pornography but also any other printed or video matter that explicitly describes
or depicts sexual conduct, then there is a significant possibility that Condition 13 would
cover a large proportion of the books and magazines published in this country, as well
as a large proportion of the movies, television shows, and video games produced in this
country. If that is the case, then a prohibition of this scope seemingly would not be
narrowly tailored to Diorec's rehabilitation and/or the protection of the public.
For these reasons, I agree with my colleagues that Special Conditions 13,
14, and 15 - all of which incorporate the phrase "sexually explicit material" - must
be rewritten.
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